Tag Archives: polyamory

Modern marriage, theology, and the state

Three pieces about marriage for your consideration. First, theologian John Milbank writes at the ABC Religion and Ethics Portal. He offers a complex and intriguing argument against same-sex marriage – one that makes a lot of assumptions that I don’t share. Nonetheless, it’s an interesting attempt to defend the status quo without, supposedly, invoking homophobic attitudes in any way. Milbank concedes that he is likely backing a loser, and he suggests attitudes that the Christian churches might take in a world where same-sex marriage is increasingly provided.

Second, my piece on the same site defends same-sex marriage, but more or less in passing in the context of a wider discussion of marriage in a fully secular society. I prefer the state abdicating entirely from the marriage business, but that is an ideal that I don’t consider achievable even in the medium-term future, let alone the short-term future. If we are going to make realistic policy in current crcumstances, we should support same-sex marriage. I go on to discuss how the state should regard traditional polygynous marriages and, on the other hand, modern concepts of polyamory. The article as a whole is adapted from my discussion of these issues in Freedom of Religion and the Secular State. This piece may read like a reply to Milbank’s (it appeared a day, or indeed some hours, later) … but they were written independently.

Third, Stephanie Zvan replies to me (and gets some interesting discussion going) on her Almost Diamonds blog. She is largely in agreement, but worries about one particular issue that I brought up in defending same-sex marriage, namely that of rights as next of kin. Should this really transfer automatically to the spouse (from parents, or whomever) on marriage? Zvan sees a downside to it.

There is also a thread about the first two pieces over on Richard Dawkins’ site, if you’re interested.

Whatever their other merits or otherwise, all three pieces argue the issues in ways that are a little different from the usual posts and op.eds on same-sex marriage. Hopefully they might enrich the current debate.

Do we need laws banning polygamy?

This is the hot topic for the week, following the judgment of a Canadian court upholding a ban on polygamous marriages.

Here are two online articles criticising the outcome of the case: one by Kate Heartfield, writing for The Province; the other by Stephanie Zvan in a post on her blog at freethoughtblogs.com.

I have a lot of sympathy for both of these pieces. That’s not to say that the case is wrongly decided as a matter of law – I think that’s quite a difficult question, and I’d like to think about it further. In particular, I would like to – *sigh* – read the 300+ page judgment in its entirety (does anyone have a link for it?).

One interesting issue for legal theorists is this: what if a statute was initially enacted to achieve a purpose that was in breach of such concepts as freedom of religion (which might have constitutional protection), but is now, generations later, best rationalised on some other, seemingly legitimate, basis? Should we now see the statute as serving a legitimate secular purpose? Perhaps … but it’s not just obvious. What if the constitutional protection of freedom of religion came along after the statute was enacted? Does that make a difference? I don’t see a clear philosophical answer to questions like that. Maybe it’s just a policy question. I’m open to hearing some views.

In any event, public policy on this issue in Canada will now be in a mess. It’s clear that the state won’t register polyamorous relationships (polygynous, polyandrous, or more complicated) as marriages. I could agree with this – in fact, I argue for exactly this in Freedom of Religion and the Secular State (though not with any great enthusiasm … see for yourself if you don’t mind shelling out).

But that doesn’t mean that all such relationships are prohibited. You’d think it might end there, in fact: in Canada, polyamorous relationships are not prohibited, but nor are they registrable as marriages with whatever social and legal benefits that might entail. Full-stop. I could go along with that. But it seems that there is going to be a middle category of relationships that are actually prohibited, if they show sufficiently marriage-like properties – perhaps including extra-legal recognition as marriage through a religious ceremony. If so, that is just a mess. I don’t necessarily mind the state deciding what relationships it will extend its blessing – and certain legal privileges – to. But I don’t want it getting into the bedrooms of consenting adults with criminal bans on their private erotic arrangements, for which they are asking for no particular privileges from the state.

We should try to avoid dogma … especially if we haven’t read a legal judgment in its entirety, so as to see the full argument. I’d like to know more about the judge’s reasoning. But at the moment, I’m very sympathetic to Heartfield and Zvan.

What do you think?